Alito's Day in Court

Chief Justice John Roberts' announcement yesterday that Justice Samuel Alito would deliver both of the Supreme Court final decisions for the term marked a personal triumph for Alito. Thus far, his year at the court had been relatively quiet. He’d for the most part refrained from any dramatic concurrences or dissents -- as though keeping his powder dry for Burwell v. Hobby Lobby, the biggest religious-liberty decision in years.

Alito cares deeply about religious liberty issues, a topic about which he wrote important opinions while serving as a judge on U.S. Court of Appeals for the Third Circuit. Yet personal interest in an issue doesn't guarantee a justice the opportunity to write an opinion. Assignments to write opinions are made by the most senior judge in the majority -- and the chief is always by definition most senior. Alito, the most junior judge in the majority, was in principle last in line for the job.

Yet he was also the logical person to write the Hobby Lobby opinion. Roberts favors pragmatism -- at least when the spotlight is on. He wouldn’t have wanted to write a high-profile conservative opinion himself.

Justice Anthony Kennedy couldn’t write the opinion because as a conservative he is simply too moderate. Indeed, so concerned is Kennedy to maintain that reputation, he wrote a separate concurrence in Hobby Lobby simply to insist that the opinion wasn’t too sweeping or too conservative.

Antonin Scalia, the longest-serving conservative justice, would have been an awkward fit for a different reason. He was the author of the brilliant and controversial Oregon v. Smith, the 1990 decision that reversed years of liberal precedent in holding that religious dissenters are not entitled to exemptions for neutral, generally applicable laws. In those bygone days, Scalia’s brand of conservatism opposed religious exemptions -- and liberals, in the tradition of Justice William Brennan, loved them.

In response to Scalia’s Smith decision, Congress passed the Religious Freedom Restoration Act, which produced the exemptions in the Hobby Lobby case. To be fair to Bill Clinton, who signed that law, it enjoyed extraordinary bipartisan support. Cosponsored by Senators Ted Kennedy and Orrin Hatch, it passed 97 to 3 in the Senate. Civil libertarians and evangelicals alike considered exemptions to be the right and due of sincerely believing religious dissenters.

Given that the act was passed to spite Scalia, it would have been strange for him to write an opinion expanding its interpretation. Yes, he could draw a distinction between the Smith decision, which was constitutional, and the Hobby Lobby case, decided under federal law, not the Constitution. Nevertheless, the politics are embarrassing.

Alito, though he admires Scalia, always detested his famous Smith opinion. The nickname “Scalito” that some gave Alito to suggest he is a kind of diminutive Scalia, never fit on the subject of religious liberty. On the Third Circuit, Alito devoted his most creative opinion to subverting the Smith decision.

In one especially significant 1999 decision, Fraternal Order of Police v. Newark, Alito exploited a loophole in Smith to make the case all but irrelevant. Scalia had written that religious exemptions could continue to exist in cases where a government had in place a generalized scheme of exemptions -- as for example where an unemployment insurance office made case-by-case determinations. So, in the Newark police case, Alito held that a regulation allowing police officers suffering from folliculitis to wear beards amounted to a scheme of generalized exemptions, and hence required the city to exempt Sunni Muslim officers who wanted to wear beards, too. Under Alito’s logic, any exemption made for any reason counted as a basis for reintroducing the pre-Smith exemptions regime.

Alito’s Hobby Lobby opinion echoed the logic of his Newark Police decision. Alito wrote for the majority that the Barack Obama administration had not used the least restrictive means necessary to protect the corporations’ religious liberty, because the administration had already made accommodations for religiously inspired nonprofit organizations. Once again, the fact that a single exemption had been made was used to prove that all comers deserved an exemption.

The dissenters fulminated that Alito’s approach gives carte blanche to any corporation that seeks an exemption from neutral, generally applicable laws. If he were to be fully honest, Alito would no doubt have to agree: In his view, exemptions should be widely available.

Such honesty, however, would also have to be accompanied by a devastating critique of the liberals, who have traditionally hated Smith as much as Alito does, but on civil libertarian grounds. For the four liberals to oppose exemptions under RFRA because they like contraceptive care, women’s rights, and the Affordable Care Act is as questionable -- maybe more so -- than Scalia embracing a broad reading of RFRA. The liberals can claim that they’re just interpreting a statute -- but it’s a statute that was adopted by liberals to get more exemptions in order to get around Smith.

With Hobby Lobby, then, Alito retired the “Scalito” moniker. This time Scalia, the old Jedi master, followed the young aspirant. If that makes you worried about the future of the Republic, well, you’re not alone.

To contact the writer of this article: Noah Feldman at noah_feldman@harvard.edu.

To contact the editor responsible for this article: Tobin Harshaw at tharshaw@bloomberg.net.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."
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